Labor Relations Update

HR Generalist’s Threat To Bring In Union Not Protected, NLRB Rules

One of the most interesting things about labor relations is the unusual situations human resources professionals have to deal with on a day to day basis.  If you are at a cocktail party with a human resources professional, ask them what the most unusual thing they’ve ever encountered on the job and chances are you’ll hear something truly unique and interesting.  The inherently human element makes for good story telling because you really can’t make some of this stuff up.  The NLRB recently was confronted with a situation where an HR Generalist, — a person hired specifically to review and help keep an employer in compliance with labor and employment laws,– took the knowledge he gained to immediately threaten the employer with, among other things, bringing in a union if the perceived problems were not corrected.

In Matrix Equities, Inc., 365 NLRB No. 69 (May 15, 2017) the employer had a vacancy in its human resources department and in an employment advertisement, placed by the Office Manager, sought “an ambitious HR professional to assist in the overall operations of the HR department . . .who is willing to go above and beyond  in the best interests of the company.”  Among the skills required for the job was familiarity with “employment laws and human resources topics, recruiting, interviewing applicants and payroll entry.”  The employer was growing and wanted to hire someone who was knowledgeable enough to make sure it was in compliance with workplace laws.

Enter HR candidate Charging Party whose resume stated he “was well versed in analyzing and executing recruitment strategies and human resources functions and had a ‘compliance mindset.'”  During Charging Party’s interview the Office Manager informed him that part of his job was to review employer’s workplace practices “for the purpose of achieving compliance with the law.”  Charging Party assured the employer that he had conducted internal audits and possessed the requisite knowledge.  Charging Party was hired and was given access to the employer’s payroll systems and background services; Charging Party also received keys to the employer’s filing cabinets containing all personnel files.

Employer’s Office Manager told Charging Party that she would like the process of background checks reviewed for “red flags.”  Charging Party immediately raised a red flag, his own:  that he had previously pled guilty to larceny. Although Charging Party had revealed this information on his application, Office Manager was not aware of it, and testified that had she known, she would not have hired Charging Party.

Charging Party then reviewed personnel files and payroll information.  Charging Party drafted a lengthy letter to Office Manager in which he stated he “had major concerns about the workplace.”  Charging Party asserted one of the employees was a racist.  He also took issue with another employee’s playing a radio station with “uncensored music.”  Charging Party noted that the employer’s paid time off policy was “sub-par” because employees were making less than the average demographic salary.  Charging Party complained that he and other employees were mis-classified as exempt under the Fair Labor Standards Act.  As a solution, Charging Party stated that he “ha[s] and will continue to give serious thought in regards to contacting the NLRB and attempting to organize and eventually form a union (sic).”

Charging Party’s letter continued:  he addressed his prior criminal conviction and alleged that one of the employer’s managers was “age- and sex- biased.”  Charging Party concluded his letter by noting the workplace issues were “very serious” and had “deeply affected” him.  Finally, Charging Party asserted he would “not tolerate them anymore.”  It was undisputed that Charging Party had not discussed any of the concerns raised in the letter with other employees.

After reading the letter, Office Manager told Charging Party he was not a team player and fired him.  Charging Party filed charges with the NLRB, which issued complaint.

General Counsel’s Theory and the Judge’s Decision

The General Counsel asserted that Charging Party’s termination was a preemptive strike under Parexel International, LLC, 356 NLRB 516 (2011) to prevent Charging Party from engaging in statutorily protected conduct.  Under Parexel, the General Counsel has the burden of proving the adverse action was motivated by an intent to suppress protected activity.  The Board’s holding is designed to prevent against employers building “a dam at the source of supply” of potential protected activity, by acting against an individual the employer believes may start engaging in protected activity.

The Administrative Law Judge rejected this theory, noting that Charging Party never discussed any of the concerns raised in his letter with other employees.  The ALJ concluded that Charging Party “was interested only in protecting his own job by threatening to initiate a variety of legal actions and that he had no interest in promoting, supporting, or assisting other employees in seeking to address any of those issues.”  The ALJ recommended dismissal of the claim.

The General Counsel appealed.

NLRB Concludes Charging Party’s Actions Were Personal And Not Protected

A unanimous Board upheld the ALJ and found no violation of the law.  The Board noted that Charging Party was hired because of his compliance experience and “he and [the employer] shared an expectation that he would bring to [Office Manager’s] attention instances of potential non-compliance” so that the two could work together to find a solution to the problems.

The Board noted that Office Manager’s initial reaction to the letter was positive “because [Charging Party] had found areas in need of improvement–because he was hired to do just that.”  Office Manager’s pleasure soured as she continued to read the letter realizing that “[Charging Party] was not raising the issues to her so that they could work together” but that she was “taken aback” by what she felt was Charging Party’s betrayal of the company and her by “pursuing a course of action plainly inconsistent with the basic purpose for which [the employer] had hired him.”

The Board found it significant that there was no evidence that Office Manager harbored any animus toward protected activity or that the discharge was to prevent Charging Party from occurring in the future.  The Board noted Office Manager did not try to find out if Charging Party had talked to other employees nor did she accuse him of “stirring up” activity.  Thus, there was no evidence to support the theory that the discharge was preemptive.

The Board saw no protected activity at all.  Instead, the Board noted that, after being employed for about two weeks “and without having spoken to any of his coworkers about the issues raised in his letter,” Charging Party presented a letter that contained a range of information, the “vast majority of which did not touch on Section 7 activity.  Instead, the letter addressed Charging Party’s “individual impressions and complaints” as well as his obvious concern that he might be fired for his prior criminal conviction.

The Board noted that Charging Party’s letter offered no solutions to the problems he raised and “was drafted in a manner plainly inconsistent with the purposes and duties for which” he was hired.

Lessons Learned

The scenario presented in this case is a potential nightmare for employers.  A person who is hired to assist with compliance, and who has access to all personnel information, threatens to take action.  It seems clear that the manner in which the Charging Party was hired, and ultimately fired, give good insight into navigating a potentially risky situation.  There was evidence that the Charging Party was hired in large part to help address any potential compliance issues, — and although Charging Party seemed to spot issues well, by not offering any solutions he just didn’t do his job.  By threatening to take all sorts of actions Charging Party clearly was acting disloyally.  As to the manner in which Charging Party was fired,– for the contents of his letter and nothing else,– meant that the only evidence of protected activity was the mention of the word “union” in the letter.  Charging Party did not talk to other employees and the employer did not inquire into whether he did. As we recently saw, an employee’s mere invocation of the word “union” does not cloak the activity with the Act’s protection. The employer also did not couch the termination in terms that might give rise to a claim under the Act.  Rather, the employer merely ended the employment of someone who was not doing the job they were hired to do.

You can’t make this stuff up.

Union Adherent’s Antics Not Protected By Act, NLRB Rules

The NLRB recently issued a rare decision completely dismissing all allegations against an employer; rarer still because it was unanimous.  In Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017) the NLRB was confronted with a situation where an employee-union adherent engaged in behavior ultimately found to be inappropriate and unprotected.

The employer, a hospital treatment center for patients with severe emotional and mental problems, recognized a nurses’ union as representative of registered nurses at the facility (“Union”).  The mental health technicians working at employer’s facility were represented by Teamsters.  There was an attempt by the Union to raid the Teamsters unit and cause the technicians to change representation; this attempt was led by a registered nurse.  These kinds of efforts can cause a great deal of friction in a workplace because the employer has legal obligations to both unions.

Registered Nurse Engages In Strident Actions

During a bargaining session between the Union and the employer, the registered nurse brought several Teamsters-represented technicians to the meeting as “witnesses.”  The employer objected to the presence of the technicians.  When the technicians remained, the employer left the meeting.  The Union and the employer met the next day for bargaining and no technicians were present.

Within a couple of days after the bargaining incident, the employer was conducting a tour of its hospital for managers and staff from a sister facility.  During the tour, the group visited the unit where the registered nurse worked.  The registered nurse immediately started screaming demanding to know “who the visitors were and why they were there.”  An adolescent patient was in the vicinity of the exchange.  When the employer representative leading the tour did not respond, the registered nurse started asking the visitors why the she was barred from visiting the sister hospital.  Apparently, registered nurse and a Union official had made an attempt to visit the sister hospital and were denied access to the facility.

The registered nurse kept asking the visitors why she wasn’t allowed to visit their hospital.  As the tour was winding down in the parking lot of the hospital, the registered nurse approached the group and pointed at the leader of the tour saying, “this one don’t do sh%t, she ain’t sh%t.  She walks around here with an air. . . .I am going to get you the f*ck out of here.”

The employer decided to terminate the registered nurse for her unprofessional conduct.

The Union filed charges alleging that the employer’s cancellation of the bargaining session violated Section 8(a)(5) of the Act as a breach of its good faith obligation to bargain.  The Union also claimed the registered nurse’s termination was motivated by protected activity in violation of Sections 8(a)(3) and (1) of the Act.

Cancellation Of Bargaining Session Not A Violation Under The Circumstances

The Administrative Law Judge dismissed the bargaining cancellation allegation.  The Judge noted that the “cancellation of bargaining sessions is an indicia of a failure to bargain in good faith, although ordinarily much more than a single isolated cancellation of a bargaining meeting is required before a violation is found.”  The ALJ considered that the circumstances present in the case, – the invitation of members of a different union who were the subject of a raiding attempt,– was not the most conducive to good faith bargaining:

Although, as shown above, parties are generally permitted to select their own bargaining team, that does not necessarily include the selection of ‘observers’ who are not members of the bargaining team and have nothing to add to the bargaining.  Extending bargaining to such observers–by either side, over the objection to the other–would raise the potential for mischief and serious interference with good-faith bargaining.

The ALJ noted that it is one thing for a union to engage in organizing another union’s employees but “it is quite another to take that fight to the bargaining table involving a separate unit.”  The Board affirmed this finding on appeal

Discharge Of Registered Nurse Was Not For Protected Activities

The General Counsel alleged that the registered nurse’s termination was motivated by her protected activity, mainly her behavior during the bargaining session.  The ALJ found that the General Counsel had not satisfied his burden of establishing that the termination was motivated by protected activity, noting that there was no linkage other than timing between the bargaining session and the tour.  The Judge noted that although the employer’s attorney objected to the presence of outsiders, there was no reaction at all related to the registered nurse.  The ALJ found the “real motivating factor for the discharge was an independent set of circumstances completely divorced from any union or other protected activity –[registered nurse’s] unprovoked misconduct that interfered with a legitimate tour group.”

The ALJ also considered whether the conduct of the registered nurse was protected requiring an analysis of whether it became unprotected.  The ALJ concluded that no protected activity occurred:

[the incidents] did not involve protected concerted activity by [registered nurse] or anyone else.  [Registered nurse] was at work during two of the confrontations; and the third took place after work in [the employer’s] parking lot.  The tour and its aftermath were not an invitation for her to interfere with the tour so as to turn those acts of interference into protected activity.

The ALJ also seemed swayed by the fact the registered nurse “perceived the tour as somehow related to her union activity.  But protected activity must be based on objective fact, not subjective perceptions of the party or witness making the claim.”  In other words, an employee cannot immediately cloak conduct in the protection of the Act by making claims related to union activity (here, the attempt to visit a different hospital) that do not relate to an ongoing dispute.  The conduct must be related to the employee’s own terms or conditions of employment.  Yelling at a tour group because of a perceived slight at a different hospital does not fit into that category.

Takeaways

In the age of corporate campaigns, where the aim of conduct is often simply to cause irritation in the hopes of pressuring the employer for a larger goal, Brooke Glen Behavior Hospital offers good insight into how to respond to these actions.  Bringing outsiders of any kind to a bargaining session can be disruptive and arguably is evidence of bad faith.  In some of the more contentious bargaining situations politicians, clergy, and other public figures are invited as “witnesses” despite the fact the sole purpose of having such individuals attend is to pressure the employer.  Here, the employer did not overreact.  Although the employer did not continue the bargaining session it was faced with a real dilemma:  permitting the technicians on this one occasion might open the door to the Union bringing these employees,–who were represented by a different union,– to more sessions.  The employer made its point and then continued bargaining the very next day.

The registered nurse’s behavior towards the tour group is a trickier issue.  As we have noted, actual protected activity can take very strident forms and not lose protection of the Act, even in cases where the language used is vulgar.  Had the registered nurse used profanity towards a manager while expressing a legitimate workplace grievance and no outside visitors, customers or clients were present there is llittle doubt this conduct would be protected.  Also, the fact the registered nurse here acted alone does not always mean it is not “protected concerted activity” because in the right circumstances a single employee’s actions can be protected.  What is significant in this case is that the registered nurse aimed her activities at a tour group, visitors who were not involved in any workplace dispute, an object that had no other purpose than to vex the employer.  This might very well be a different outcome if, for example, the registered nurse targeted a tour of people who were set to take bargaining unit jobs.

 

NLRB’s Micro-Union Standard May Be Set For Reversal

Change is coming.  We noted recently that the administration is thinking about changing the newly adopted persuader regulations.  We also know that a majority of make-up of the NLRB is likely to shift very soon, and with it some of the precedents of the last few years will be reversed.  Newly appointed Chairman Miscimarra seems to be reiterating what he’d like to see changed through his dissents in recent cases.

In Cristal USA, Inc., 365 NLRB No. 74 (May 10, 2017), a Board majority denied an employer’s request for review of a Regional Director’s decision about a bargaining unit.  In the decision the Regional Director approved a unit of warehouse only (the unit sought for by the union) and rejected the employer’s contention that the unit should include the production employees in the plant as well as the production employees working in the employer’s plant across the street.  In finding this smaller, discrete unit appropriate, the Regional Director applied Specialty Healthcare and Rehab. Ctr of Mobile, 357 NLRB No. 83 (August 26, 2011).  Specialty arguably is the most significant decision issued in the last few years as it upended years of Board law in favor of a standard that almost guaranteed that the bargaining unit sought by the union in its petition would be found to be an appropriate unit.  If the group of employees sought by the union is identifiable then the only way the employer can prove that a larger unit was appropriate is to establish the employees it seeks to add shared an “overwhelming community of interest” with the petitioned-for employees.  It is not surprising that since Specialty issued, very few cases have resulted in a larger bargaining unit.  Indeed, the standard has resulted in some odd decisions.

In Cristal, Chairman Miscimarra signaled his intention to re-visit, and perhaps reverse, Specialty, noting that he thought that decision was “wrongly decided.”  Miscimarra noted that there was evidence of that the employees working in close proximity at the employer’s two plants shared a very common interest in that they all were part of an integrated employer operation.  We will keep you posted on any developments.

Signs Point To Change In Government’s Position On New (But Currently Enjoined) Persuader Rule

The fight over the Department of Labor’s attempt to “clarify” the 50 plus year interpretation of the persuader rules may be coming to an end.  After its implementation, the persuader rule was immediately challenged in litigation in Minnesota and Texas.  Late last year, the U.S. District Court in Texas issued a national injunction halting the enforcement of the rule pending the outcome of the litigation.    The government appealed and before the appeal could be heard the administration changed.

Recent court filings demonstrate the new administration may be rethinking whether it wants to continue trying to enforce the new persuader rules or perhaps even abandon the rule altogether.  In the Texas litigation, the Department of Justice filed an unopposed Motion for Extension of Time to file a response to the Court on the grounds that, “Acting Solicitor General, the Civil Division of the Department of Justice, and the new leadership at the Department of Labor are engaged in ongoing consultations regarding this litigation.  The government requires additional time to complete those consultations.”  A similar document in the form of a Joint Status Report was filed in the Minnesota litigation.

It is very likely the new administration is considering what to do about the persuader rule and the ongoing litigation; we may see a change very soon.  We will keep you posted on further developments.

NLRB GC’s Attempt At Summary Judgment In Handbook Case Rejected By NLRB Majority

The change in a presidential administration always brings changes to government agencies, including the NLRB, as new appointments are made reflecting the policy preferences of the administration.  The NLRB is not immune to this change and it has been historical practice for the president to appoint three members from the party of the administration and two members from the opposing party.  Of the five positions on the NLRB two are vacant, and both eventually will be filled by the Republican administration, presumably by management-oriented members.  If that happens, then it is a sure bet there will be changes to existing case law.

While the world awaits these changes (or at least the fraction of the world that cares about labor relations), however, the NLRB continues on with its business as if nothing has changed.  The agency continues to push the envelope on its initiatives.

NLRB GC Attempts To Forego Hearing Altogether By Filing Motion For Summary Judgment

In a recent case,  Mercedes-Benz U.S. International, Inc., 365 NLRB No. 67 (May 5, 2017)  a two person NLRB majority rejected the General Counsel’s attempt to gain summary judgment in a handbook case.  Chairman Miscimarra (a Republican) and Member McFerran (a Democrat) denied a motion of the General Counsel to find a violation of the Act based solely on the employer’s maintenance of a rule prohibiting the use of cameras and recording devices in its manufacturing facility without prior authorization.  The Board majority found summary judgment to be inappropriate because the employer had raised arguments about its “asserted business justification, and about whether the rules were communicated or applied in a manner that clearly conveyed an intent to permit protected activity.”

Member Pearce, in a lengthy dissent, stated he would grant the motion for summary judgment, asserting that the defenses raised by the employer would not matter, “Even assuming the truth of the [employer’s] claims, they do not cure the unlawfulness inherent in the [language of the] rule.”

Significance Of The Case:  Employers Can Continue To Litigate Policy Issues

This two page decision is remarkable for a few reasons.  First, the whole concept of the handbook violations has been based on the language of the policy itself, and usually all other matters are irrelevant.  Under the NLRB’s analysis in Lutheran Heritage Village-Livonia, 343 NLRB 646, 647  (2004), assuming there has not been application of the rule in a discriminatory manner or that it was promulgated in response to protected activity, then the primary inquiry is whether “employees would reasonably construe the language to prohibit Section 7 activity.”  This analysis is essentially the Board’s review of the language at issue to make the determination.  Thus, the employer’s business justification for the rule may not be apparent from the handbook rule itself and thus would not factor into the analysis.

Second, it is surprising the General Counsel hasn’t attempted to obtain summary judgment in handbook cases in the last several years the Lutheran Heritage standard has been in existence.  Those who have the pleasure of being involved in these cases know that the majority are usually submitted to the Administrative Law Judge or Board directly by stipulation because there is no dispute over the language of the policy; in the vast majority of cases there is no evidence of actual impact on identifiable employees. The argument that there are not any facts in dispute would seem to have been viable for many years.

Third, one can only guess as to why this is being attempted now but it seems logical, and likely, that the change in administration has prompted the NLRB to continue pushing the agenda in a new and aggressive manner while it awaits new appointments.  Precluding the employer from having a hearing on the matter by obtaining summary judgment could potentially cut months off of the litigation and get to a remedy much faster.  Of course, employers dislike these types of cases because of the fact it is seemingly illogical that common workplace policies, many of which have been in place for years and evince common sense standards could somehow hypothetically be interpreted in such manner as to violate the Act.  Employers also find this area of the law puzzling because of the vagueness of the standard (which often is decided by two Board members) and the potential serious consequences of a finding of a handbook violation of the Act despite the fact there is rarely, if ever, any evidence identifying employee who impacted, let alone actually read the policy in question.

The Change That Is Coming Likely Will Involve Changes To The Lutheran Heritage Standard

Of the many decisions the NLRB may revisit in the coming months, Lutheran Heritage is certainly on the list.  In prior dissents, then Member Miscimarra has expressed his view that the standard in Lutheran Heritage is unworkable and needs to be changed.  See, e.g., William Beaumont Hospital, 363 NLRB No. 162 (2016) (“This case presents a tragic example presented by the Lutheran Heritage standard”).  Given these strong pronouncements it is very likely we will see some change to the standard if not an outright reversal.

Changes to NLRB precedent could still take months.  For any change to occur, the case law has to be challenged in pending cases and that position has to be advanced up to the Board in the event of an adverse decision.

17 Year Old Ruling In Representation Case Can Preclude New Claim For Employees, Divided NLRB Rules

Of all the changes to the law the NLRB has made in the last several years, the most significant involve how the agency determines bargaining units.  For example, the NLRB’s decision in Specialty Healthcare drastically altered the manner in which bargaining units were determined by the Regional Directors and the NLRB.  Also, the NLRB’s ambush election rules also fundamentally changed the ability to challenge a petitioned for bargaining unit by granting Regional Directors immense discretion to decide whether litigation over a proposed bargaining unit could even proceed.

It is somewhat surprising, then, that the NLRB recently decided that prior unit determinations, even those that are several years old and pre-date Specialty Healthcare, could have a “preclusive effect” (known as res judicata) on a new petition:  that is, a prior Regional Director or NLRB ruling on a bargaining unit presumptively stops a party from attempting to re-litigate the previous issue unless it can rebut the presumption by showing that circumstances have changed.  It is even more surprising that the Board majority was made up of Acting Chairman Miscimarra (who usually is in the dissent) and Member McFerran.  Board Member Pearce dissented.

Case Involved 17 year Old Regional Director Decision

In Wolf Creek Nuclear Operating Corporation, 365 NLRB No. 55 (April 7, 2017), the petitioning union sought through a representation petition to hold an election and represent some buyers at a nuclear power plant.  The employer asserted the buyers were “managerial employees” outside of the NLRA’s jurisdiction.  The employer contended that the status of the buyers had been decided during a previous representation proceeding held in 2000.  In the 2000 case, the union had filed a unit clarification petition seeking to place the buyers in an existing collective bargaining unit.  The Region in that case ruled the buyers were managerial employees and did not add them to the existing unit.

In the present case, the Regional Director reviewed the 2000 decision and concluded that it was not binding because “the Board did not issue an official ruling on the issue of whether Buyers are Managerial employees. . .”

The employer appealed.

On appeal, a Board majority granted the appeal and remanded the case to the Regional Director.  In doing so the Board concluded the 2000 Regional Director’s decision was a “final order” which precluded relitigation of the status of buyers because neither party appealed it to the Board; the lack of appeal rendered the decision a final order. The Board came to this conclusion because the rules in effect 17 years ago precluded “parties from relitigating in any related subsequent unfair labor practice proceeding, any issue which was, or could have been raised in the representation proceeding.”  The Board stated that it saw “no reason why a regional director’s decision that could have preclusive effect in a related subsequent unfair labor practice proceeding would not also be potentially preclusive in a subsequent representation proceeding involving the same parties and the same issue, although the Board’s Rules and Regulations do not expressly contemplate that scenario.” (emphasis in original).

The Board held that the prior decision may have preclusive effect unless the party seeking to relitigation of the previously decided issue “satisfies its burden of presenting new factual circumstances that would vitiate the preclusive effect of the earlier ruling.”

The Board remanded the case to the Region to “fully consider whether changed circumstances warranted declining to give the 2000 decision preclusive effect.”

Dissent Takes Issue

Member Pearce disagreed with the majority, claiming that the Board’s decision impermissibly required the union to prove that circumstances had changed:

The employer has raised res judicata as an affirmative defense to the petition, relying on a unit clarification determination that is almost 17 years old.  As the party raising res judicata as an affirmative defense, the Employer bears the burden of proving that is defense is justified.

Impact of Decision

The Board’s decision will be significant for those parties, union or employer, who have previously litigated and won a particular issue in a representation case.  No matter how long ago the prior litigation occurred, the party wishing to enforce it can assert that the issue cannot be relitigated.  Once the prior decision has been raised, the burden will shift to the opposing party to demonstrate that circumstances have changed since the prior ruling warranting a fresh look at the issue.  It is a significant decision because it seems to not take into account the fact the Specialty Healthcare decision fundamentally changed how bargaining units are determined, in effect preserving these prior decisions as precedent.  Given the fact that the decisions that the Board and Regional Directors have issued since Specialty Healthcare have disregarded prior Board precedent, this decision is a notable exception.

There are two vacancies on the Board the new President has yet to fill.  It is entirely possible Specialty Healthcare, and a host of other decisions representing changes to longstanding Board law, will be reversed in the coming years.

Supreme Court Holds that Lafe Solomon Improperly Served as NLRB General Counsel

The Supreme Court has dealt another blow to the stability of the National Labor Relations Board. In a 6-2 decision, in, National Labor Relations Board v. SW General, Inc. DBA Southwest Ambulance, USSC Case No. 15-1251 (March 21, 2017),  the  Court held that the NLRB’s prior Acting General Counsel, Lafe Solomon, who served as acting GC while awaiting Senate confirmation that never came amidst political gridlock, improperly served in that role from January 2011 through the fall of 2013.  The Court concluded, based on its interpretation of the Federal Vacancies Reform Act (“FVRA”), a statute enacted in 1998, that someone who is nominated  serve in an acting office could not also serve as the permanent nominee.

The Supreme Court affirmed the DC Circuit Court’s ruling that resulted in an unfair labor practice complaint issued against the employer SW General, Inc. was void. As we noted in our previous discussion of this case, here, the ruling appears to be limited to those cases involving Solomon decisions where the issue was expressly raised by a party.  This ruling casts a significant shadow over the hundreds of actions undertaken by Solomon directly during his tenure that have been challenged by a party as lacking authority.  Such decisions may include, besides the issuance of complaint, the appointment of Regional Directors and the authorization of injunctive relief.  The Supreme Court remarked that any such actions are “voidable.”

Background

In June 2010, President Obama directed Lafe Solomon, a career NLRB employee, to serve as Acting General Counsel. In January 2011, the President nominated Solomon to serve in this role on a permanent basis.  The Senate never took action on this nomination, and President Obama ultimately withdrew Solomon’s name in favor of Richard Griffin, who was confirmed in October 2013; Griffin still holds the position.

In January 2013, an NLRB Regional Director, acting on Solomon’s behalf, issued an unfair labor practices complaint against SW General, Inc.  An Administrative Law Judge found that SW General had committed unfair labor practices.  SW General appealed the ruling, raising among other things, that the complaint itself was improper, asserting Acting General Counsel Solomon was not properly appointed.  The NLRB rejected the appeal and the employer petitioned the D.C. Circuit Court of Appeals for review, arguing that the Regional Director’s issuance of the Complaint was invalid because subsection (b)(1) of the FVRA precluded Solomon from performing the duties of the General Counsel after having been nominated to fill the position.  The D.C Circuit agreed with SW General and voided the complaint.  The NLRB appealed.

Holding

The Supreme Court affirmed the D.C. Circuit’s decision, finding that application of the statute to these circumstances was fairly “straightforward.” After analyzing the plain language of the statute, the Court concluded that subsection (b)(1) of the FVRA clearly prevents a person who has been nominated to fill a vacant office requiring Presidential appointment and Senate confirmation (referred to as a “PAS office”) from performing the duties of that office in an acting capacity.

The Court rejected the NLRB’s contention that government-issued “guidance” construing this provision to apply only to “first assistants” trumps the plain language of the statute, and the Court also dismissed the argument that Congress had acquiesced to this practice by failing to “speak up” to prior circumstances where permanent nominees had served as acting officers in violation of the FVRA.

Impact of the Decision

There is no way to tell how many of the hundreds of prosecutorial decisions made by Lafe Solomon were challenged as “voidable” but it is possible the number could be very high. Only time will tell the impact.  For example:

  • Some employers may have been found to have violated the NLRA based on a voidable complaint which they contested but did not appeal beyond the NLRB. Those decisions may be erased from an employer’s record.
  • Similarly, some employers may have had a bargaining unit certified by a Regional Director who was appointed by Solomon.  There may no longer be an obligation to bargain in such a unit.

Solomon worked and made decisions in his capacity as Acting General Counsel from January 2011 to October 2013. Actions taken by the Acting General Counsel during this period of time should be reviewed.

Employer’s Interview Of Employees During Defense Of Unfair Labor Practice Violates Act, NLRB Rules

We already know that when it comes to the NLRB there already are several actions an employer can take that violate the NLRA, even though such actions would be perfectly acceptable under any other employment law.  And sometimes the actions are deemed unlawful even when they are not directly related to the NLRA.  Thus, we’ve seen how telling employees to maintain confidentiality during an investigation violates the Act.  So does having handbook provisions that are typical and normal for any workplace.  We also see how social media postings by employees that are critical of the employer can spell trouble for employers punishing employees for such postings.

A recent decision by the NLRB reminds us that some violations unique to the NLRA are not new.  In Tschiggfrie Properties, Ltd., 365 NLRB No. 34 (February 13, 2017) the employer was confronted with an unfair labor practice complaint primarily concerning the termination of an employee that was set for trial. As is typical in any legal proceeding, leading up to trial the employer representative and attorney interviewed an employee witness twice as part of the defense.  The General Counsel of the NLRB alleged these interviews violated the Act because proper assurances had not been given.

During the trial, the employee witness was asked whether the employer and employer’s counsel posed any questions about the union.  The employee testified, “yeah, a few, but not a lot.”  The General Counsel did not elicit any specific information about what the employee was asked during trial preparation.

The Administrative Law Judge concluded no violation had occurred because based on the record “[i]t is not possible to judge the lawfulness of a question under [the NLRB’s standard for coercion] without knowing what the question was.”  In other words, there was no proof in the record that any question was posed that could possibly coerce an employee under the Act.

On appeal, the NLRB reversed, finding the employer’s interviews with the employee violated the Act.  The NLRB recited the law concerning interviewing employees in defense of unfair labor practice cases:

When an employer interviews an employee about protected activity in preparation for an unfair labor practice hearing, ‘the employer must communicate the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis.’  Johnnie’s Poultry Co., 146 NLRB 770, 774-775 (1964). . .

The Board concluded that a violation had occurred because the employer  “questioned [the employee] about protected activity by asking him about the union campaign. . .”  This, of course, contradicts the record which did not support that any question regarding any employee’s protected activity had been posed.  Still, like so many other situations, the Board found a violation by incrementally stretching precedent to cover the situation despite a marked lack of proof.  It would appear now that absent proof the assurances were given then a violation will be found.

Of course, defending an unfair labor practice proceeding necessarily requires inquiry into matters that may involve protected activity and so it is always a good idea to give the Johnnie’s Poultry assurances.  Also,

  • Always get the assurances in writing.  In this case, the employee couldn’t remember what he had been told by the employer and employer’s attorney and having something in writing would resolve the issue.
  • Defense of an unfair labor practice is not the only proceeding where the assurances should be given.  It is the safe and prudent course of action to give the proper assurances when interviewing any union-represented employee as part of a workplace matter, whether it be a sexual harassment investigation or in preparation for an arbitration under a collective bargaining agreement.

Employer Did Not Violate Duty To Bargain Over Change To Christmas Gift Policy, NLRB Rules

What would the holiday season be without a Christmas gift case?  A perennial problem for labor relations personnel is whether the yearly Christmas turkey given to employees is something that an employer must bargain over before (bah humbug) discontinuing. See, e.g., Q-1 Motor Express, Inc., 323 NLRB 767, 775 (1997).

In a decision issued shortly before Christmas, the NLRB held that an employer’s change of an existing Christmas gift policy did not violate its duty to bargain because the employer had followed the procedure for changing the policy set forth in the collective bargaining agreement.  In  Howard Industries, Inc., 365 NLRB No. 4 (December 21, 2016), the employer, a unionized manufacturer of electronic transformers, had a “Christmas Gifts” policy that covered “employees and retired employees” whereby employees would be eligible for a “Christmas gift of a ham if the company deems so on a year to year basis.”  The employer always included in the definition of “employee” those who were out on medical leave or workers compensation as eligible to receive the Christmas ham.

The collective bargaining agreement of the parties contained what is commonly known as a zipper clause which stated:

The parties acknowledge that during the negotiations which resulted in this Agreement, each had an unlimited right to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargaining.  Except as provided below, they may therefore each voluntarily and unqualifiedly waive the right for the life of this Agreement to bargain collectively with respect to any matter referred to or covered in this Agreement or with respect to any subject or matter not specifically referred to or covered by this Agreement.

Such language has long been held to act as a bar to further negotiations (it “zips up” the agreement) if either party does not wish to talk about a matter.  This particular clause continued as follows:

However, if the Company wishes to change an existing policy, create a new policy, or modify job performance standards that affect the bargaining unit, advance written notice will be provided to the Union via email.  If the Union wishes to negotiate over the changes it will notify the Company in writing within ten (10) calendar days of the receipt of the notification.  If the Union does not serve written notification of a desire to negotiate over the policy or policy change, the Company may implement the change and the Union waives any arbitration or other legal remedies concerning the creation or modification of the policy.

The employer’s Human Resources manager sent an email to the union representative attaching a proposed “Christmas Gifts” policy which defined changed the definition of employees to “active employees” and would necessarily mean that employees on leave would not receive the Christmas ham.  The email incorrectly listed the date of the policy in effect.  The union did not respond or otherwise engage the employer and the employer implemented the new policy.  After employees who did not receive the Christmas gift complained to the union the union requested bargaining.  The employer refused citing the zipper clause. The union filed charges and the NLRB issued complaint.

The Administrative Law Judge noted a case concerning a change would “normally require an analysis of issues such as whether the employer made a unilateral change regarding a mandatory subject of bargaining, and if so, whether the union clearly and unmistakably waived its right to bargain.”  The ALJ stated such an analysis was unnecessary because, “the parties created and agreed to a specific procedure that applies when [the employer] wishes to change an existing policy. . .”  The NLRB General Counsel did not contend the waiver contained in the zipper clause was invalid.  Under these circumstances the ALJ ruled, “the issue in this case, then, is whether [employer’s decision] to implement its [new] gifts policy. . is protected by the collective bargaining agreement.  I agree with [the employer] that it is.”

Both the union and the General Counsel argued that the error in the employer’s email that incorrectly listed the date of the policy somehow excused the union from requesting bargaining.  The ALJ disagreed “that the incorrect date of the old policy invalidates [the employer’s] notice to the Union.  Even with the incorrect date of the old policy, the Union was still on notice under the procedures set forth in the collective-bargaining agreement.”  Indeed, the ALJ found that “[t]o the extent that the incorrect date of the old policy prompted questions, that should have provided the Union with even more reason to notify [the employer] that it wished to negotiate.”

A unanimous three member panel of the Board upheld the ALJ’s decision without comment.

One wonders why this case even made it to complaint.  The union failed to request bargaining within the agreed upon timeframe and then immediately filed charges when it did not get its way.  Arguably, the union violated its duty to bargain in good faith by filing Board charges despite the fact the language of the agreement said it waived “any legal remedies.”

This case is a good example of very clear contractual language setting forth the procedure for changing policy.  The employer followed the policy and the union didn’t, and despite the language of the zipper clause saying the union had waived all remedial rights by failing to respond to the email notice the General Counsel still pursued a case through trial and appeal.

This case is yet another example of how inconsistent the NLRB can be when it comes to evaluating waivers of bargaining.  The case demonstrates that even with crystal clear language regarding notice and opportunity to bargain, and the consequences for failing to respond, the NLRB may still insist that such language really doesn’t mean what it says.

NLRB Overturns Election Win For Employer That Failed To Timely Serve Voter List (Even Though Union Received List In Timely Fashion)

The NLRB is down to three members, the bare minimum required to conduct business, and so cases are being issued somewhat sporadically.

The so-called ambush election rules have received a lot attention over the last few years.  We recently discussed here a case where the NLRB found that a union had not timely filed a position statement on an issue as required by the new rules.  The NLRB held that the rules prohibited the receipt of the position statement but nonetheless found that the Regional Director had discretion to consider the issue,–to the benefit of the union that failed to follow the rules.

In a recent case the NLRB found that an employer’s failure to timely serve a voter eligibility list pursuant to the rules required the overturning of an election where the union lost,–even though the union had received the list in a timely fashion.

In URS Federal Services, Inc., 365 NLRB No. 1 (December 8, 2016), the employer and union entered into a stipulated election agreement to hold a representation election at the employer.  The election agreement required the employer to submit a voter eligibility list within two business days of approval of the agreement.  The election agreement was approved on a Thursday, so the list would be due on the following Monday.  The employer filed the list with the Region on Saturday, two days before it was due.  On Monday, the Region forwarded the list to the union, which was approximately 8 days before the election.  The employer did not serve the union with the list.

The union lost the election (although we are not told by how much), and it filed an objection to the election based on the fact the employer had not served the list on the union.  The Regional Director did not find the employer’s failure to serve the list problematic because under the election agreement the Region was required to forward the list to the union, which it did. So the union had the information required under the rules in a timely fashion.

The union appealed.  A two member majority of the NLRB (Miscimarra dissenting) found that the new election rules required them to overturn the election, and so the majority reversed the Regional Director and sent the case back for a new election.

The Board reviewed the election rules:

Section 102.62(d) of the Board’s Rules and Regulations, as amended, expressly requires that the employer in a representation case ‘shall provide to the regional director and the parties . .a list of the full names…[and other information] of all eligible voters. . .Finally, Section 102.62(d) provides that an employer’s failure to file or serve the list ‘shall be grounds for setting aside the election whenever proper and timely objections are filed.’ Id., emphasis added.

The Board held the rules were amended in this fashion because “the Board deliberately sought to eliminate the prior two-step procedure –under which the employer would file the list with the regional director, who would then forward the list to the other parties–because it had caused delay and unnecessary litigation.”

The Board distinguished its prior ruling in Brunswick Bowling Products LLC, 364 NLRB No. 96 (August 25, 2016), where it held that the rules prohibited the Regional Director from accepting an untimely filed position statement but could nevertheless consider the issue because the rule in question there, 102.66(b) expressly granted such discretion.

The Regional Director had ruled that the union could not be prejudiced because it had the information required by the rules in a timely fashion, meaning there was no impact on the election.   The Board majority stated, “we need not address the Acting Regional Director’s reasoning on this account…The Board in 102.62(d) has articulated a prophylactic rule concerning voter list service that obviates the need for Regional Directors to delve into a showing of prejudice in order for elections to be set aside.”  In other words, the rule is so bright line that it requires the Regional Director to ignore whether there is any possibility the union was actually prejudiced in conducting the election.  There was no possibility of prejudice to the union in this case.

Member Miscimarra dissented citing numerous reasons why the Board majority was wrong.  In particular, Miscimarra pointed out:

[I]n this case, the [union] received the voter list  on time, and the only deviation from the Election Rule was that the list was transmitted to the Petitioner by the Region rather than the Employer.

Member Miscimarra interpreted Brunswick differently than the majority, stating:

With all due respect to the majority, their attempt to draw a distinction between these two cases does not withstand scrutiny.  In Brunswick Bowling, the Board concluded that the Regional Director properly exercised her discretion to find merit in a contract-bar defense, even thought the union’s Statement of Position was not timely served. Notwithstanding this defect, the Regional Director in Brunswick Bowling concluded–and the Board unanimously agreed–that noncompliance with the service requirement should not prevent the Board from appropriately addressing an outcome determinative election issue.

For rules that were passed with the intention of eliminating litigation, it seems this goal has not been met.  The Board’s rules require the party filing an unfair labor practice charge to serve the charge on the opposing party, and this almost never happens because the Board serves the charge during the investigation.  No party ever claims the charge cannot move forward.

The requirement that the union have access to the voter eligibility list in a timely fashion has been the law for many years prior to the passage of the ambush election rules.  The union received the same exact list from the Region it should have also received from the employer, but didn’t.  It is troubling that such a technical issue as whether a document was served, which under these circumstances could not have had any impact on the election, could result in granting the losing party (a rule which could only apply to a union loss) a brand new election.  This case reminds one of the Board’s rule of overturning elections due to the presence of a handbook violation, another instance where not a single employee could have been impacted by the issue.

LexBlog